5 Things I Learned Suing over Shampooing
Not long ago, Tennessee effectively flew the white flag on our shampoo lawsuit by just giving us what we wanted, full repeal of the “shampooing license.” The license required a 300-hour educational requirement on the “theory and practice of shampooing.” Anyway, now it’s gone, and it means a victorious end to our lawsuit. Two cheers there. This license was vigorously enforced and hurt a lot of people. While this was a positive step, many of the more embarrassing facts won’t ever come to light. Here are 13 things everyone should know:
1. When it was enacted, the shampoo license was intended to protect cosmetologists from competition, not the public from harm, and the Board still thinks that’s fine.
I suppose this seems pretty obvious – after all, most folks manage to regularly shampoo their own hair without disaster. What other purpose could there be?
What stands out though is that when the license was debated on the legislative floor in 1995 and 1996, no one even pretended this was about protecting the public from shampooing.
And when defending this law, the Board seems to still think this is perfectly ok even now:
Ouch. And we wonder why no one trusts our institutions anymore? Have your job taken away just to reward some special interest group? Deal with it. The kicker to this one is that it’s wrong. “[P]rotecting a discrete interest group from economic competition is not a legitimate governmental purpose.” Craigmiles v. Giles, 312 F.3d 220, 224 (6th Cir. 2002).
2. The Board thinks that some shampoos are illegal.
3. The Board paid an expert $600 an hour to testify shampooing was dangerous.
That seems excessive. Our expert was going to testify for free. And the Board would never say how much they paid their expert in total. I asked and this is what they said:
It’s anyone’s guess why they had to be so coy. This will never come out now that the law was repealed. What the Board spent in taxpayer dollars to prove shampooing is dangerous will remain a state secret.
4. The Board thinks the complaints are also a state secret. Surprisingly, no one gets hurt from shampooing.
It tried to avoid divulging the complaint files that would show whether, contrary to their representations, people were actually getting hurt by a scourge of rogue shampooers by citing inapplicable medical privacy laws. Only, these complaints go to a public hearing where there is a public finding. And on the “File a Complaint” page, the Board even says these complaints are public information.
They worked very hard to come up with reasons not to let anyone see this. After much griping, they finally produced the complaints. Shampooing is exactly as dangerous as you think, which is to say, not dangerous in the least.
5. The Board thought it was important that you take a test before you can shampoo hair but the Board isn’t sure what’s on the test.
The Board outsources the test to a third party vendor to do the testing. The Board isn’t privy to what’s on it.
This is just the beginning. We turned the stone over on shampooing and this is what we found wriggling underneath. Other harmless activities considered to be cosmetology like hair braiding continue to go largely unexamined. Yes, braiding hair is illegal without a license. This is crushing Tennesseans right now. For educational purposes only, I direct you to this story of a refugee and mother of four posted on Change.org who is desperately hoping Tennessee won’t take away her version of the American dream and ability to provide for her family.
It’s time to talk seriously about this mess. We are impoverishing entire classes of Tennesseans who want to work but we won’t let them, and not for any good reason. Would we really allow all of these people to grow cynical as we push them into the shadows and welfare rolls and just “call this politics?” The conversation needs to continue even if the lawsuit does not.